On January 30, 2015, our firm filed yet another amicus curiae brief in our continuing effort to revitalize and extend the property basis of the Fourth Amendment. Here the case involved applying the Fourth Amendment to protect certain commercial records of hotels — guest registers.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

A group of Los Angeles hotel owners challenged a Los Angeles city ordinance which authorizes police to search through the hotels’ guest registers without a warrant. The City claimed that hotel owners have no expectation of privacy in a business record that they are required to keep by the City. And the City claimed it has a significant interest in fighting crimes committed in and around the hotel property. Thus, the City asserted that, in such a highly regulated industry, there is no need for probable cause, much less a warrant. In short, Los Angeles argued that the Fourth Amendment does not apply.

We point out in our brief that business records located in commercial establishments and personal papers located in a private residence are both private property, and that both are equally protected by the Fourth Amendment. Indeed, the very roots of the Fourth Amendment can be traced directly to James Otis’ 1761 opposition to the Crown’s use of writs of assistance against merchants — allegedly to deter smuggling and other crimes.

From the founding era, up until the early 20th Century, courts understood that the Fourth Amendment protected the People’s property rights — in their “persons, houses, papers, and effects.” But in 1967 the Supreme Court cast aside the Fourth Amendment’s protection of property, in favor of a judicially-contrived “expectation of privacy” test which reigned for the next 40 years. Using this “expectation of privacy” test, judges felt free to disregard the Fourth Amendment when, in their judgment, the right should give way to the needs of law enforcement.

Drawing on two recent Supreme Court decisions, our brief challenged the City’s assumption that the Fourth Amendment protects only privacy expectations. On the contrary, we argued, in United States v. Jones, the Supreme Court held that the unambiguous text of the Fourth Amendment protects the People’s property rights in their “persons, houses, papers, and effects.” Our amicus brief in Jones argued for just what the Supreme Court decided.

Further, in Florida v. Jardines, the Court ruled that the Fourth Amendment establishes a property rights “baseline,” and that privacy expectations can only add to, but cannot subtract from, that baseline.

Ignoring both Jones and Jardines, Los Angeles fails to honor this property rights baseline, contending that any warrantless search would be reasonable because the hotelier’s privacy interest “pales” in significance when compared to the City’s interest in fighting crime. This is the very kind of balancing that Jones and Jardines were designed to stop.

Surprisingly, the hotel owners’ brief — filed by the “Harvard Law School Supreme Court Litigation Clinic” — focused its arguments on privacy. That brief was written as if the U.S. Supreme Court had never decided Jones and Jardines.

Our brief urges the Supreme Court to stay the course set by Jones and Jardines, restoring the Fourth Amendment to its property rights foundation, protecting against trespasses by government, regardless of the alleged privacy expectation, and regardless of any alleged governmental interest that the City of Los Angeles might conjure up as a blank check to search and seize a company’s business records. We think James Otis would agree.